FCC Updates NEPA Environmental Rules for Wireless and Satellite Facilities

The FCC is streamlining the environmental review process for the deployment of wireless and satellite facilities. The new rules will reduce the cost of wireless infrastructure deployments and eliminate lengthy federal reviews for the buildout of communications infrastructure, enabling providers to build out their networks more quickly and at lower costs to provide new and improved services.

Under the National Environmental Policy Act (NEPA), the FCC must determine whether any proposed “major federal action” (MFA) will significantly affect the quality of the human environment and, if so, must assess those environmental impacts.

The FCC generally meets its NEPA obligations through its regulations, which currently impose enforceable duties on licensees, applicants, registrants, and non-licensee tower owners, such as commercial licensees, utilities, public safety entities, and others, and relies on those entities to make the initial evaluation of potential environmental effects.

Definitions and Exclusions of Major Federal Actions

The FCC codified the updated statutory definition of an MFA as “an action that the Commission determines is subject to substantial Commission control and responsibility.” An MFA is subject to NEPA requirements.

The FCC defined several actions that are not Commission MFAs:

• • A non-Federal Action with no or minimal Commission funding.
  • A non-Federal Action with no or minimal Commission involvement where the Commission cannot control the outcome of the project.
  • Funding assistance solely in the form of general revenue sharing funds which do not provide Commission compliance or enforcement responsibility over the subsequent use of such funds.
  • Loans, loan guarantees, or other forms of financial assistance where the Commission does not exercise sufficient control and responsibility over the subsequent use of such financial assistance or the effect of the actions.
  • Bringing judicial or administration civil or criminal enforcement actions.
  • Extraterritorial activities or decisions, which means Commission activities or decisions with effects located entirely outside of the jurisdiction of the United States.
  • Activities or decisions that are non-discretionary and made in accordance with the Commission’s statutory authority.

Wireless Deployments Are Not MFAs

The FCC determined that spectrum authorizations it issues do not constitute MFAs. Therefore, wireless infrastructure deployments in connection with Commission-issued spectrum licenses that do not require an Antenna Structure Registration (ASR) are not subject to NEPA review.

The FCC further held that the deployment of non-Federal facilities that do not require an ASR in connection with the following non-exhaustive list of actions are not MFAs, including:

• • Geographic-area spectrum licenses.
  • Site-based spectrum licenses.
  • The provision of unlicensed or licensed-by-rule wireless services.
  • Satellite earth station licenses.
  • Actions associated with space-based operations, including the launch, deployment, and operation of space stations.

The FCC explained that towers and communications infrastructure are “non-Federal facilities” if they are privately built without targeted Commission funding that is expressly directed toward and conditioned on the construction of a specific communications facility. Commission funding for unspecified private deployments or operator expenses does not give rise to an MFA.

Streamlined NEPA Review Procedures

The Commission updated its procedures for facilities that remain subject to NEPA review.
Among other things, the FCC adopted rules for when it may adopt another federal agency’s categorical exclusions, established procedures to designate a lead federal agency for multi-agency projects, and implemented procedures to expedite reviews in emergency situations. The FCC also revised the filing requirements and timelines for review of environmental assessments and impact statements.

The FCC streamlined the environmental notice and other processes for ASR applications that remain subject to NEPA review, including eliminating the local notice requirement for ASRs, eliminating the notice requirement for most types of lighting changes, and clarifying the obligations of owners of voluntarily registered structures.

Section 106 National Historic Preservation Act Review and Endangered Species Act

The FCC deleted its rules that currently trigger the need for an environmental assessment for wireless facilities that may affect historic properties or Indian religious sites. The FCC is recodifying its National Historic Preservation Act (NHPA) rules in a new subsection and emphasizes that it is not making any substantive changes to the NHPA rules other than relocating them.

Effective Date

The new rules will be effective thirty (30) days after publication in the Federal Register, except for certain rule sections that will become effective after the Office of Management and Budget (OMB) approves them and the FCC’s Wireless Telecommunications Bureau publishes a notice in the Federal Register announcing the completion of OMB’s review and the relevant effective date.

Further Notice of Proposed Rulemaking

In a Further Notice of Proposed Rulemaking (FNPRM), the FCC is asking for comment on its framework under the NHPA. The FCC wants to refresh the record on whether activities that are part of the deployment and operation of communications infrastructure are within the meaning of “undertaking” that triggers NHPA review. The FCC invites commenters to address whether it could make the NHPA process more efficient by modifying its procedures, such as permitting batch filings, approaches to bring non-compliant towers into compliance, and other ways to improve the Tribal consultation process and timeline. The FCC also seeks comment on whether the construction of communications facilities in connection with FCC spectrum authorizations are “agency actions” subject to the Endangered Species Act.

Comments on the FNPRM will be due 30 days after Federal Register publication, with reply comments due 45 days after Federal Register publication.

If you have questions about the FCC’s new NEPA rules or the FNPRM, please contact Kevin Cookler in our Broadband, Spectrum, and Communications Infrastructure Practice Group.